The 2/3rds rule in anti-defection law

The Indian Express | 1 month ago | 28-06-2022 | 05:45 am

The 2/3rds rule in anti-defection law

The political crisis in Maharashtra has given rise to the question whether the Shiv Sena rebels can avoid disqualification under the anti-defection law.Law and exceptionUnder the anti-defection law, a member of a legislature can be disqualified if he or she has voluntarily given up membership of their political party; and if he/she votes or abstains from voting in the House contrary to any direction issued by their party (or by any person or authority authorised by the party).There is a provision to protect such legislators from disqualification. If two-thirds of the members agree to a merger with another party, they will not be disqualified. Under the 91st Amendment to the Constitution in 2003, the exemption from disqualification if one-third of the members form a separate group (the rule prior to the amendment) was removed.How courts have ruledIn February this year, the High Court of Bombay at Goa held that 10 Congress MLAs and two two MGP MLAs, who had defected to the BJP in 2019, are exempted from disqualification and held that a merger of this group of Congress MLAs is “deemed to be a merger” of the original political party with the BJP (Girish Chodankar v Speaker, Goa Legislative Assembly).In Rajendra Singh Rana v Swami Prasad Maurya (2007), a Constitution Bench of the Supreme Court interpreted the term “voluntarily giving up membership of a political party”, and held that “a person may be said to have voluntarily given up membership of an original party even though he or she has not tendered resignation from membership of the party” and that an inference can be drawn from conduct of the member.The two-thirds ruleSome experts believe that even if two-thirds of legislators have broken away, they will be protected from disqualification only if they merge with another party or become a separate group in the legislature.Senior advocate Devdatt Kamat, representing Shiv Sena, said that until the MLAs rebel camp merges with another party, disqualification under the anti-defection law will still apply to them. He said there are court judgements including in the Ravi Naik case (1994) in the Supreme Court which held this view.Senior advocate Shrihari Aney, a former Advocate General of Maharashtra, said there are debatable positions about the anti-defection law. “Various courts have passed verdicts as per specific facts of the case and I am of the view that the Eknath Shinde faction has already crossed the two-thirds mark and thus they cannot be subjected under this law and they are protected from the anti-defection law. They are entitled to be identified as a separate group or a ‘gat’ in the house and to participate in the proceedings.”Newsletter | Click to get the day’s best explainers in your inboxDisqualification noticesAnother issue that has arisen is whether the disqualification notices served on 16 rebel MLAs can stand the scrutiny of law. Experts said that as per the Maharashtra Legislative Assembly (Disqualification on grounds of Defection) Rules and other stipulations, the Deputy Speaker’s decision cannot be upheld.Aney said, “In my opinion, the notices disqualifying some MLAs are void ab initio. The orders are premised on the ground that these MLAs did not attend the official meeting and did not adhere to the whip. But, a whip is limited only to the business of the legislature… Here it was for a meeting called by their president Uddhav Thackeray.”

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15 of 20 ministers in Maharashtra face criminal cases, shows analysis
The Indian Express | 1 hour ago | 12-08-2022 | 11:45 am
The Indian Express
1 hour ago | 12-08-2022 | 11:45 am

Seventy-five per cent of the Maharashtra ministers have declared criminal cases against themselves, according to the Association for Democratic Reforms (ADR).Maharashtra now has 20 ministers, including the chief minister, after the council of ministers was expanded on August 9 with the induction of 18 members.After the cabinet expansion, the Association for Democratic Reforms and the Maharashtra Election Watch analysed the self-sworn affidavits of all ministers submitted during the assembly polls in 2019. According to the analysis, 15 (75 per cent) ministers have declared criminal cases against themselves and 13 (65 per cent) have declared serious criminal cases against themselves.All the ministers are ‘crorepatis’ and the average value of their assets is Rs 47.45 crore. “The minister with the highest declared total assets is Mangal Prabhat Lodha from Malabar Hill constituency with assets worth Rs 441.65 crore. The minister with the lowest declared total assets is Bhumare Sandipanrao Asaram from Paithan constituency with assets worth Rs 2.92 crore,” the ADR said.There is no woman in the council of ministers. Eight (40 per cent) ministers have declared their educational qualification to be between 10th and 12th standard, while 11 (55 per cent) have declared having an educational qualification of graduate or above.One minister holds a diploma. Four ministers are aged between 41-50 years and the remaining between 51-70 years.Maharashtra Chief Minister Eknath Shinde expanded his two-member ministry by inducting 18 ministers on Tuesday, 41 days after he took oath of the office along with his deputy and BJP leader Devendra Fadnavis.Of the 18 new ministers, nine each were from Shinde’s rebel Shiv Sena group and the BJP. Shinde and 39 other Shiv Sena legislators had revolted against the party leadership in June this year, which led to the collapse of the Uddhav Thackeray-led Maha Vikas Aghadi government.

15 of 20 ministers in Maharashtra face criminal cases, shows analysis
Maharashtra: Tussle over home & other portfolios delays allocation
Times of India | 8 hours ago | 12-08-2022 | 04:22 am
Times of India
8 hours ago | 12-08-2022 | 04:22 am

MUMBAI: The delay in allotment of portfolios and appointment of guardian ministers after expansion of the state cabinet stems from a tussle for portfolios in the 45-day-old government led by CM Eknath Shinde. If a senior politician is to be believed, both CM Shinde and deputy CM Devendra Fadnavis have staked claim on the home portfolio, and in addition, there is dispute on certain other portfolios, resulting in inordinate delay in allocation. "Our information is that within BJP, Fadnavis and Chandrakant Patil are keen on the home department, while Shinde feels that it should be allotted to the Shiv Sena," he said. Fadnavis expects the exercise of allocation of portfolios to be completed before August 15. "There is no dispute. Internally, we have completed the exercise. It has been decided which departments will be allotted to BJP and Shiv Sena cabinet members. I am sure the final notification on portfolios will be promulgated before August 15. Even the appointments of guardian ministers will be approved shortly," Fadnavis told TOI. According to reports, while BJP has completed the exercise of allocation of portfolios to its cabinet members, the Shinde-led Shiv Sena is yet to take a decision on several departments. Since there are only 20 cabinet members, including the CM and Dy CM, every minister will get at least two or three departments. "A combination of a prime department and a less significant portfolio has been planned by both BJP and Sena, so every cabinet member will have at least one important department," he said. Stating that the home department is the bone of contention, the politician said that as Fadnavis had held the home portfolio when he was CM, he expects to lead it again. "As home minister, his performance was impressive, so most of BJP's cabinet members felt he should be allotted the home department. However, now unexpectedly Chandrakant Patil has stepped in and staked claim," he said. Apparently, Shinde has taken the view that for better administration, the home department should be with the CM. Congress legislature party leader Balasaheb Thorat said it took 40 days to expand the cabinet and now it has taken another week for allocation of portfolios.

Maharashtra: Tussle over home & other portfolios delays allocation
At native village, locals still have faith in Nitish but some doubt his post-poll vaults
The Indian Express | 9 hours ago | 12-08-2022 | 03:45 am
The Indian Express
9 hours ago | 12-08-2022 | 03:45 am

The board abutting the concrete lane leading up to Bihar Chief Minister Nitish Kumar’s ancestral home at Kalyan Bigaha village, in Nalanda district, gives a taste of the sense of pride among residents over the ‘local boy’. It reads: “Kalyan Bigaha ke laal, aapne kar diya kamaal! Aap hi vikas purush, aap hi Nitish Kumar (Oh, son of Kalyan Bigaha, you have pulled off a wonder! You are the development man, you are Nitish Kumar).”The JD(U) leader’s frequent political flip-flops, however, seem to be beginning to make people here somewhat restless.“We trust whatever Nitish-ji does. The same thing happened in Maharashtra, too. What’s wrong here?” said Suvender Singh, 60, a farmer from Kurmi community, which Nitish belongs to.Suvender was talking about the BJP walking away with most Shiv Sena MLAs, and the government, in Maharashtra.Brajesh Kumar, 50, another Kurmi farmer, however, was dismissive: “Nitish-ji has become a thali ka baigan (fickle-minded). It is increasingly becoming difficult to trust him. Aisa lagta hai baraati koi bhi ho, dulha ek hi rahega (it appears the groom will remain the same in every wedding). I don’t think this alliance will last long.”Raja Malik, 27, who comes from Dom community, a SC sub-caste, pitched in: “Everyone in this village, and even in this region, supports Nitish Kumar. But in their heart, people feel he should not have broken the alliance with BJP.”Almost everyone around him nodded in agreement.Part of the discomfort with Nitish’s alliance with RJD stems from the fear that Yadavs, a dominant OBC caste, may begin to assert themselves more aggressively now.“One of my Yadav friends, who has taken a car loan and is now being harassed by recovery agents, was yesterday beaming. He said if agents now approach him, he will run them over with his car. He may not do so, but he wouldn’t have felt this sense of impunity if RJD was not part of the (ruling) alliance,” said Dharmaveer Paswan, a motorbike mechanic at Harnaut bazaar, a few kilometers from Kalyan Bigaha.Laddoo Singh of Kharuara village near Bakhtiyarpur also acknowledged the Yadav factor as a “challenge”. Singh, who belongs to Kurmi caste, said: “If a tree is laden with fruit, it must remain flexible. Otherwise it will snap at the first gust of wind. So the challenge will be to control the Yadavs. I was telling some Yadavs in our village to not start flying high, else this experiment will also fail.”Reminded that the Grand Alliance governed for two years earlier, Paswan said, “Nitish-ji was an equal partner then. He is a junior (partner) now.”Paswan’s neighbour Basant Prasad Yadav, who runs a sweet shop in Harnaut market, was more dismissive. He said, “Nitish Kumar is finished. From ‘Paltu Ram’ (turncoat), he has become ‘Bhatku Ram’ (aimless person). He should have become deputy CM and let Tejashwi Yadav be the CM. You should know your strengths and accordingly demand a post — he should have been deputy CM even in the last alliance (with BJP)…”Amid speculation in some quarters that Nitish could be made the Opposition’s joint PM candidate, while there is excitement, few believe it will become a reality.“Nitish may want to become PM, but he is not PM material. He will never become one,” said Ramsnehi Singh, 75, who claims to have seen Nitish Kumar grow up in Kalyan Bigaha. “Look at Narendra Modi — world leaders come to meet him, hold him in high regard. Does Nitish have that stature? If he was so popular, he would not need alliances.”Laddoo Singh of Kharuara is excited about the Opposition gaining in strength but is not too sure of its prospects. “Everyone has personal ambitions. He has been CM for 15 years, now he wants try something bigger. That is good,” Singh said. “Whether he will win or not, we don’t know. But if he does not even put up a challenge, then obviously Modi will not be defeated.”

At native village, locals still have faith in Nitish but some doubt his post-poll vaults
SAD claims its acting district chiefs have full faith in Badal’s leadership
The Indian Express | 9 hours ago | 12-08-2022 | 03:45 am
The Indian Express
9 hours ago | 12-08-2022 | 03:45 am

The Shiromani Akali Dal Thursday claimed that its acting district presidents have expressed complete faith in the leadership of Sukhbir Singh Badal and claimed that a conspiracy is afoot to destabilise regional parties. The party also asked its leaders to desist from questioning Badal’s authority or face disciplinary action.The development comes at a time when there are reports of a “rebellion” brewing in the party amid rumblings for a change in the party leadership.“Sukhbir Singh Badal was, is, and will remain our president,” the acting district presidents said in a meeting held under Badal’s leadership, the party claimed.It said 39 acting rural and urban presidents expressed faith in the leadership of Badal. Four acting district presidents could not attend the meeting as three are abroad, and one is not well.Senior leaders Iqbal Singh Jhundan, Virsa Singh Valtoha and Mantar Singh Brar said all acting presidents had made it clear that they had “full faith in the farsighted and visionary leadership of Badal and that he will remain the president of the party”.Valtoha, in an apparent reference to party MLA Manpreet Singh Ayali, alleged he had meetings with BJP leader Manjinder Singh Sirsa in Delhi. But Ayali refuted the charge and said he had gone to the national capital to bring back his wife who returned from Canada. Ayali said he would leave politics if Valtoha’s charge against him is proved.Last month, the SAD leadership was left red-faced after Ayali went against his own party by boycotting the presidential poll, saying issues related to Punjab remained unresolved and he was not consulted by his party leadership before deciding to back NDA candidate Droupadi Murmu. Ayali had sought the implementation of the recommendations of the Jhundan panel formed after the party’s defeat in the 2022 assembly polls and had even spoken about a change in party leadership.Valtoha, who was a member of the Jhundan committee, claimed that there were talks of reforms within the party in the report “but nowhere it was mentioned to change the party leadership as is being projected”.Newsletter | Click to get the day’s best explainers in your inboxJhundan told the media the party panel headed by him had made 42 suggestions, which would be implemented in due course. “We admit that there have been mistakes in the past but we are committed to correcting them. You will witness a definite change in the SAD in the coming days,” he said.Valtoha and Jhundan asked party leaders questioning Badal’s leadership to discuss their reservations at an appropriate party forum and not to breach discipline. Anyone breaching party discipline is not a well-wisher of the party and such indiscipline will no longer be tolerated, the leaders asserted, as per the SAD statement.They asserted that a conspiracy is afoot to destabilise regional parties and their leaders are being defamed. The intention is to break regional parties to spread the hegemony of the Bharatiya Janata Party (BJP) which has been witnessed in Maharashtra and even Bihar recently, they said in the statement.The leaders expressed confidence that the BJP would not succeed in weakening the SAD in Punjab while adding that the party would never compromise on its principles.

SAD claims its acting district chiefs have full faith in Badal’s leadership